This post is courtesy of our new guest blogger, Arkansas State University Professor Hans Hacker. I recently had the pleasure of meeting Hans a few weeks ago on a trip to ASU, where I worked with his students taking part in the moot court competition. I enjoyed listening to a political scientist’s view of the Supreme Court, which is conceptually different from how I usually think about the Court, as a brief writer. I think the political scientist’s view can really help explain the dynamic someone writing a brief is working with, and sometimes against, in trying to persuade the Court. Anyway, what follows is Professor Hacker’s post.
While at dinner the other day with friends, one asked the rest of us what judicial biographies were on our reading lists. Only one of us could come up with a biography, one that had just hit the market. “I think it is important to read these,” he said. “They often capture the efforts to persuade, the memos and letters flying between the justices’ chambers, and the personalities involved in cobbling together a majority.” My friend is a lawyer, and not a political scientist.
Listening to him talk about the importance of judges who modeled judicial behavior (not to mention judges as models for living), I recalled a conference panel I attended some years ago. One of the finest qualitative political science researchers in the country presented an article on Harry Blackmun (it later became a book). The discussant had this to say about it–“I didn’t expect this to be very good because the study of individual justices doesn’t teach us anything about the Court as a whole,” she said. “But, I was surprised how much I learned from this. It’s not what we should be doing in political science, but I liked it.” That was more than ten years ago. Fortunately, since then social scientists have figured out that the general topics of judicial biographies provide vital information if we really want to fully understand how collegial courts resolve legal disputes. In what remains of this post, I argue that a new theory of judicial decision (the New Institutionalist model) reflects the importance of things legal scholars find important for understanding courts. As a result, the differences between public law scholars and social scientists have diminished to a preference for story-telling or statistics. And, I don’t find that difference particularly important.
Over the last ten to fifteen years, social scientists studying the courts have almost completely revised the dominant paradigm of the discipline. No longer do we make the naïve claim that justices simply “write their preferences into law.” As it turns out, other things matter, too–personalities and relationships among the judges, institutional rules and norms, and how a judge works those rules to put his or her stamp upon the law. They are critical data for understanding judicial decision making, just as critical as what we call “preference maximization.” Political scientists really do prefer that their theories reflect (to the extent possible) the reality that confronts them. So, we began to look more closely at what amounts to . . . stories. And, we used the themes emerging from those stories to tell a better story ourselves using statistical methods. Or, as a social scientist might put it, our theories attempt to connect facts, interpret them, and uncover their relationships to reflect what we see happening in the world. This is the same basic goal of story-telling.
In a recent New York Times article, John Pallos explored differences in reactions to stories and statistics. His conclusion (that we all need both stories and statistics to make sense of reality) applies with some force to understanding how judges make decisions. It also explains Justice Scalia’s recent visceral reaction to a study of the effect of a justice’s religion on his or her decisions. The Pallos article made me wonder about the underlying concern that provoked such an angry outburst. Religion is in many other ways critically important to the Justice. The theory behind the article did not imply that religious belief was determinative (no one claimed that religion explains everything the justices do). Why did the article provoke such an angry outburst at a scholar simply exploring the nature of judicial decision? Pallos noted in his article that “In listening to stories we tend to suspend disbelief in order to be entertained, whereas in evaluating statistics we generally have an opposite inclination to suspend belief in order not to be beguiled.” So, if a political scientist/public law scholar had written a biography, or a set of vignettes on justices’ religious beliefs, including justices’ own comments on religious belief, Justice Scalia’s reaction might have been less severe. As it is, the University of Chicago Law School shouldn’t count on a visit from Justice Scalia any time soon.
In my own work I have tried to exhibit some sensitivity to the importance of both story-telling and statistics. Only the rare political scientist will provide guidance to courts in how to decide. Most of us hope simply to analyze the context in which decision making occurs, to describe a phenomenon rather than predict an outcome. (For example, I don’t even try anymore). My co-author and I published an article recently on justices reading in dissent from the bench. See, Blake, William D. and Hans J. Hacker, ‘The Brooding Spirit of the Law’: Supreme Court Justices Reading Dissents from the Bench. Analyzing data on reading in dissent, we noticed something counterintuitive. The more ideologically proximate a dissenting justice is to the justice writing the majority opinion, the more likely the dissenting justice will read in dissent from the bench. That seems backward, particularly when there are famous examples of high profile cases that go in the opposite direction (e.g., the oral dissents read in Bush v. Gore). Certainly, in some high profile cases a Scalia read in dissent from a majority opinion authored by a Stevens. However, it became clear that such a circumstance does not systematically explain justices’ decision to read in dissent. So, we tried to tell the story while critically examining the data. When we related our findings, we focused on explaining the theory, rather than on dry numbers with little appeal to the lawyer-scholar who studies the courts. In other words, we tried to bridge a conceptual gap that Pallos describes as largely related to personality type. We spoke to those who primarily want to avoid “observ
This was one minor article among a vast literature that developed over the last decade under the name The New Institutionalist Movement. So, to conclude, I provide a brief summary of this theory, and of what the story it tells consists. The New Institutionalist explanation of juddes’ decisions provides what political scientists call the “strategic account.” The chief components of the strategic account of judicial decision making are that “justices’ actions are directed toward the attainment of goals; justices are strategic; and institutions structure justices’ interactions”. [iii] The strategic account views judges as rational actors who engage in a calculation of the relative benefits associated with particular actions. Based on this cost benefit analysis, they select those behaviors that provide the best chances for achieving their goals. But, that’s not all, because the cost benefit analysis is conditioned by what a justice can reasonably expect to achieve. A strictly “law as politics” approach to judicial behavior is not sufficient to capture a fuller understanding of judicial decision making.
Federal courts are unique institutions that function under a different set of constitutional and political constraints than the two other branches of the federal government. These somewhat unique constraints set the bounds of acceptable behavior in pursuit of policy preference maximization. One example of this is pretty basic to a collegial court like the Supreme Court of the United States. If you want to write for the majority, you have to convince four other justices to agree with you. That in itself conditions, moderate, shapes, and otherwise alters the ability of any single justice to attain his or her preferred goals. Finally, the rules of institutions establish the ground upon which formal and informal interaction will occur, giving structure to the interconnectedness of decision making. The rules of the institution are related to the pressure exerted by justices to secure preferred outcomes under those rules.
If you are an attorney who values reading judicial biographies, you may not find this type of analysis particularly interesting. Or, you may think that this is the only way to study courts–the only way to avoid beguilement by a culture of the Court, or a cult of justices’ personalities.[iv] I argue that we can only understand the reality of the third branch if we successfully marry both approaches. In effect, the New Institutionalism has rendered differences between public law scholars and social scientists largely moot.
[i] Pallos notes that in statistics, we call this Type I error. As he notes, those who seek to avoid Type I error are generally more comfortable with statistics, and seek to avoid being beguiled.
[ii] Type II error, and you’d rather read a story and be entertained.
[iii] Epstein, Lee and Jack Knight. 1998. The choices justices make. Washington, D.C.: CQ Press Inc. at 10-11.
[iv] Posner, Richard A. 1995. “Objectivity and hagiography in Judicial Biography,” New York University Law Review. 70 N.y.u. L. Rev. 502. See also Michael J. Gerhardt’s excellent review of Gerald Gunther’s Learned Hand: the Man and the Judge. Gerhardt, Michael J. 1995. “The Art of Judicial Biography,” Cornell Law Review. 80 Cornell L. Rev. 1595. My thanks to Brandon Harrrison, Esq. of Jonesboro, AR for calling these to my attention.